CEDH · CASELAW;REPORTS;ENG — 20 janvier 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 18420/91                                Tonio Vella                                   against                                    Malta                          REPORT OF THE COMMISSION                        (adopted on 20 January 1994)                            TABLE OF CONTENTS                                                                    Page   INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1   PART I:    STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . 2   PART II:   SOLUTION REACHED. . . . . . . . . . . . . . . . . . . . . 3                                INTRODUCTION   1.     This Report relates to the application introduced under Article 25 of the European Convention on Human Rights by Tonio Vella against Malta on 7 May 1991.   It was registered on 26 June 1991 under file No. 18420/91.         The applicant was represented before the Commission by Dr. Giovanni Bonello, an advocate practising in Valletta.   The respondent Government were represented by their Agent, Dr. Anthony Borg Barthet, Attorney General.   2.     On 17 February 1993 the European Commission of Human Rights declared the application admissible. It then proceeded to carry out its task under Article 28 para. 1 of the Convention which provides:         "In the event of the Commission accepting a petition       referred to it:         a.   it shall, with a view to ascertaining the facts, undertake       together with the representatives of the parties an examination       of the petition and, if need be, an investigation, for the       effective conduct of which the States concerned shall furnish all       necessary facilities, after an exchange of views with the       Commission;         b.   it shall at the same time place itself at the disposal of the       parties concerned with a view to securing a friendly settlement       of the matter on the basis of respect for Human Rights as defined       in this Convention."   3.     The Commission   found that the parties had reached a friendly settlement of the case and on 20 January 1994 adopted this Report which, in accordance with Article 28 para. 2 of the Convention, is confined to a brief statement of the facts and of the solution reached.   4.     The following members were present when the Report was adopted:                    MM.   C.A. NØRGAARD, President                       S. TRECHSEL                       A. WEITZEL                       E. BUSUTTIL                       G. JORUNDSSON                       A.S. GÖZÜBÜYÜK                       J.-C. SOYER                       H. DANELIUS                  Mrs. G.H. THUNE                  MM.   F. MARTINEZ                       C.L. ROZAKIS                  Mrs. J. LIDDY                  MM.   L. LOUCAIDES                       J.-C. GEUS                       M.P. PELLONPÄÄ                       B. MARXER                       M.A. NOWICKI                       I. CABRAL BARRETTO                       B. CONFORTI                       N. BRATZA                       I. BÉKÉS                       E. KONSTANTINOV                                   PART I                           STATEMENT OF THE FACTS   5.     On 2 December 1983, following the receipt of information from an informant alleging that weapons and other illegal objects were to be found in the applicant's residence and the garage opposite, the police entered his home without giving the authority for their action or any reasons and conducted a search which found nothing. The applicant submits that no such information was received.   6.     The applicant was subsequently arrested and detained for questioning by the police.The applicant was kept in detention for 46 hours although his interrogation only lasted one hour.   7.     The applicant subsequently instituted proceedings against the police alleging that his human rights had been infringed.   8.     On 5 December 1986, the Civil Court ruled that the applicant had been subjected to inhuman and degrading treatment while in detention and that his arrest and detention had violated his fundamental rights. It also ruled that the entry to and search of the applicant's home was not in violation of the Maltese Constitution.   9.     Both parties appealed to the Constitutional Court which gave its judgment on 5 April 1991. It held that the arrest and detention of the applicant violated his constitutional right against arbitrary arrest and detention, as there existed no suspicion that the applicant had committed or was about to commit a criminal offence.   It also found that during the investigation the applicant had been subjected to inhuman and degrading treatment.   10.    On the issue of the entry and search of the applicant's home the Constitutional Court found that although they violated the provisions of the Criminal Code (Article 352), because the police failed to inform the persons present of the reasons for the entry and search, they were not contrary to the Maltese Constitution which provides for the search of premises where reasonably required in the interests of public order (Article 38(2)a):         "The failure of the respondent <the police inspector> refers only       to his legal duties under the Criminal Code. The Article of the       Constitution requires only `reasonable necessity' and only as       regards such requirement there was no breach of Art. 38 of the       Constitution."   11.    The Constitutional Court rejected the appeal by the police against the finding of a violation of the applicant's rights in respect of other matters. It ordered that the applicant be liable for a fourth of the costs.   12.    The applicant complained to the Commission that the police entry and search of his home was illegal and lacking in justification and that they thereby constituted an interference with his right to respect for his home contrary to Article 8 of the Convention.                                   PART II                              SOLUTION REACHED   13.    Following its decision on the admissibility of the application, the Commission placed itself at the disposal of the parties with a view to securing a friendly settlement in accordance with Article 28 para. 1 (b) of the Convention and invited the parties to submit any proposals they wished to make.   14.    In accordance with the usual practice, the Secretary, acting on the Commission's instructions, contacted the parties to explore the possibilities of reaching a friendly settlement.   15.    Between February 1993 and January 1994 there were discussions between the parties concerning a friendly settlement of the case.   16.    In light of the response of the parties, the Commission decided to invite the parties to a meeting in Malta on 5 January 1994 with a view to discussing the possibilities of reaching a friendly settlement. At the meeting, the Commission was represented by Mr. Busuttil as Delegate, the Secretary of the Commission and another member of the Secretariat. As a result of these negotiations, the parties reached agreement in the terms set out below.   17.    In a document dated 5 January 1994, the Government proposed settling the case on the following basis.         "With a view to terminating the proceedings in Application       No. 18420/91 introduced by Mr. Tonio Vella and without       implying any admission of a violation of the European       Convention on Human Rights, the Government of Malta propose       a friendly settlement on the terms set out below:         1. The Government of Malta declares that in the case under       examination the applicant's behaviour should not have given       rise to any suspicion and was not in breach of the Criminal       Code. The Government further accepts that there was no       improper motive in bringing this application before the       Commission.         2. The Government of Malta will make an ex gratia payment       of Lm 2000 to the applicant.         3. The Government of Malta will pay the 25% (unpaid) of the       costs and fees incurred by the applicant in the       constitutional proceedings.         4. The Government of Malta will reimburse the applicant in       respect of the reasonable legal fees incurred in his legal       representation before the Commission, in the amount of       Lm 600.         The above offer is made in full and final settlement of the       claims made by the applicant in Application No. 18420/91."   18.    In a statement dated 5 January, the applicant accepted the above proposals:         "With reference to Application No. 18420/91 pending before the       European Commission of Human Rights in Strasbourg and in view of       the Government of Malta's offer of 5 January 1994, the applicant       accepts the proposed terms in full and final settlement of the       claims made therein and hereby declares Application No. 18420/91       to be settled.         This declaration is made in view of the settlement within the       meaning of Article 28 para. 1 (b) of the European Convention of       Human Rights which has been reached in co-operation with the       European Commission of Human Rights in the proceedings concerning       this application."   19.    At its session on 20 January 1994 the Commission found that the parties had reached agreement regarding the terms of a settlement.   It further considered, having regard to Article 28 para. 1 (b) of the Convention, that the friendly settlement of the case had been secured on the basis of respect for Human Rights as defined in the Convention.   20.    For these reasons, the Commission adopted the present Report.   Secretary to the Commission                President of the Commission             (H.C. KRUGER)                           (C.A. NØRGAARD)